Employment Law Update

Retaliation:  What all Employers Need to Know

  • Since 2011, retaliation claims have increased at a higher rate than any other type of EEOC charge.
  • Retaliation claims allege that an employer took an adverse action against an employee (e.g., termination, demotion, suspension) because he/she engaged in a “protected activity”.
  • What is a “protected activity”?

An employee engages in a protected activity whenever he/she files an internal complaint alleging discrimination and/or harassment, files an EEOC charge or testifies in favor of another employee who filed a lawsuit or EEOC charges alleging unlawful harassment and/or discrimination.

  • Why plaintiff’s employment lawyers love retaliation claims:
    • Retaliation claims are easier to prove that discrimination and/or harassment claims because proving the truth of the underlying harassment and/or discrimination charges is not required.
    • Retaliation claims result in higher jury verdicts and frequently result in substantial punitive damage awards.
  • The chronology underlying a retaliation claim may make it difficult to defend.  For example, if a termination comes hard on the heels of protected activity, the employer can expect to defend the retaliation claim inside its own 20 yard line.
  • Risk management of retaliation claims.

Nearly every federal and state statute governing the employment relationship prohibits retaliation against an employee when he/she engages in protected activity under the statute.  Accordingly, employers contemplating termination of an employee who has engaged in protected activity whether by filing a workers’ compensation claim, a whistleblower complaint or a complaint regarding the Fair Labor Standards Act or filing a complaint or charge alleging unlawful discrimination and/or harassment should review the facts with employment law counsel before terminating the employee in question.

If you have questions, please contact Carl Muller (cmuller@warrenyoung.com) or Luke Lindberg (jlindberg@warrenyoung.com) for further information.